Posted
by
Soulskill
on Friday July 20, 2012 @03:28PM
from the and-not-just-checking-the-weather-16-times-a-day dept.

Aryden writes with news of a recent court decision in which a judge ruled it was acceptable for police to impersonate the owner of a cell phone they had seized, in order to extract information from the owner's friends. The ruling stems from an incident in 2009 when police officers seized the iPhone of a suspected drug dealer, then used text messages to set up a meeting with another person seeking drugs.
"'There is no long history and tradition of strict legislative protection of a text message sent to, displayed, and received from its intended destination, another person's iPhone,' Penoyar wrote in his decision. He pointed to a 1990 case in which the police seized a suspected drug dealer's pager as an example. The officers observed which phone numbers appeared on the pager, called those numbers back, and arranged fake drug purchases with the people on the other end of the line. A federal appeals court held that the pager owner's Fourth Amendment rights against unreasonable search and seizure were not violated because the pager is 'nothing more than a contemporary receptacle for telephone numbers,' akin to an address book. The court also held that someone who sends his phone number to a pager has no reasonable expectation of privacy because he can't be sure that the pager will be in the hands of its owner. Judge Penoyar said that the same reasoning applies to text messages sent to an iPhone. While text messages may be legally protected in transit, he argued that they lose privacy protections once they have been delivered to a target device in the hands of the police."

Really. As much of a privacy advocate as I am, I see this as completely logical and expected. Assuming the police have legally seized the device, they have complete legal control of its operation so long as they are not damaging or otherwise tampering with any evidentiary integrity the device or its data may have.

Now, once we get down to surgically-implanted wireless cochlear implants there are going to be some issues related to expectations of privacy. Then again, once we get there such a concept may not e

Wrong this is a criminal act. A seized phone of a suspect, let me remind you again, 'SUSPECT', is the property of that 'SUSPECT', capitalising to be shore you don't miss it and the police have no right to make it appear to people that the suspect is carrying out acts. This places of the burden of those acts upon the suspect and of course all associates of the suspect and can have extremely dangerous results for the suspect and their associates.

For example say a drug deal was trigger using the 'suspect's identity. The drug deal goes down people are arrested and associates of the people arrested go the suspect house and murder the suspects family. Apparently those people are nothing, simply meh, they deserve to die for being related to a suspect.

The police have not right to associate a person with an act they did not commit. Just as nobody has the right to do that. It is a sickly cowardly act and presume a person guilty until proven innocent and all associates of that person also guilty by association. Face it the Judge was a 'Shithead' first class and utterly failed to differentiate between a suspect and a person found guilty in a court of law as well as of course the risk by association placed upon others in the community.

Around here (in the U.S.) the police put stickers and lights on seized autos and use them as cop cars. Somewhere along the line we gave them the ability to take our stuff and use it because 'drugs are bad m'kay'.

I don't know much about entrapment but from what I *think* I know about it, I would say this sound entirely like that. Even if the "friend" came asking for the drugs, isn't this still a type of entrapment? Please kick me if I'm completely off on this.

Entrapment is the FBI forcing you to buy drugs. It is not entrapment if the FBI catches you attempting to buy drugs. This is why sting operations work. In a sting someone pretends to be offering %illegalstuff% and they wait for customers, who are then arrested. The logic is that the person arrested was attempting to commit a crime and would have done so even without FBI intervention.

This is probably the best short description I've seen, though there are certainly more complex shades-of-grey circumstances which are not as easy to break down.

When it can be shown that the person in question would have likely never been involved in a crime were it not for pressure induced by law enforcement it is typically considered entrapment.

Example:Small-time pot dealer makes a deal to purchase a couple pounds of pot from an undercover agent. Agent says "By the way, I'd also like to buy a pound of coke. I'll waive the fee for the pot if you hook me up." Many orders of magnitude difference in the nature of the transaction, but the agent continues to put pressure on the dealer. Dealer eventually says, "Alright, I know a guy who can probably hook you up with it, but I don't deal with that myself, nor will I act as an intermediary except to introduce you." Dealer sets up a meeting, introduces the two, coke dealer and agent set up a buy. Agent pressures the pot dealer to be present at the coke exchange itself, rather than completing the meet and sale then giving the pot dealer their "commission" at a later point. Agent trades pot to dealer and cash to the coke dealer, and everyone is arrested for trafficking in a very large amount of cocaine and possession of marijuana. Even though it was a trade and to be completed each side must have possession of either the cocaine or the marijuana, participants are charged with possession of both packages.

The dealer in question, despite being involved in illegal activity, was entrapped into a criminal charge to which they were merely an accessory. The agent parleyed a relatively minor charge into a major one by virtue of "tying" the deals together temporally, even when they would otherwise have been separate deals involving different people, in order to hit everyone with any involvement at all with the most serious charge on the table.

That's a rough example of how a complex case of entrapment works, since a complete transcript of the event would be a minor novella. In the case above, the agent involved actually admitted that it was quite clearly a case of entrapment where the dealer absolutely would not have been involved in a deal of that type or magnitude absent significant pressure from law enforcement. However, the jurisdiction in question had no laws against entrapment at the time this occurred, making that fact irrelevant for the purposes of defending against the charges, and all ended up pleading guilty or taking a plea deal.

With the way things change, it would not surprise me if the above was no longer considered entrapment though; I haven't had reason or desire to keep up with the times in that regard.

Undercover officer sees a guy on the streetcorner smoking a joint. Cop walks up to guy and says, "Hey, man, got any to sell?" Guy says "No. I don't sell the stuff. Personal use only." Cop says, "Come on, man, I just want a couple of joints to take to a party I'm going to. No big thing. I just don't know anybody around here." Guy says, "No, man. I told you. Go away." Cop says "Come ON, dude. Just two joints. I really need some. I'll give you $20."

Guy sighs and says, "Okay, man. I'm not into this but just this once. Here."

Cop arrests guy for dealing. (Depending on the state, if you sell ANY, it's a misdemeanor. Felony depends on amount.)

That's entrapment. The policeman talked him into doing something he would not normally do, in order to make the bust.

The way I look at it, it's always been done: except in the past, they turned the actual guy, and he went from being a drug dealer to impersonating a drug dealer. Is it really that different that the person at the other end of the cell phone is now an actual cop impersonating a drug dealer? At the core, the drug buyer has been and is now dealing with a fraud - somebody who says they're a drug dealer, but isn't.

It's a new concept with the inclusion of passwords. By password locking a cellphone somebody knowing your locking it is not under the believe your phone could be stolen like a pager which would not be secured. There are some fundamental differences in the technology that makes it still debatable that this is legal.

It's a new concept with the inclusion of passwords. By password locking a cellphone somebody knowing your locking it is not under the believe your phone could be stolen like a pager which would not be secured. There are some fundamental differences in the technology that makes it still debatable that this is legal.

I beg to differ. Even if that cellphone is locked, someone engaging in criminal activity can expect to be arrested at any time. Once arrested, cops will try to extract information from a phone. If that fails (i.e., if that phone is secured properly), they can always take out the sim card and put it in a police-owned device.

The sender of the text message can not expect that the text message will be delivered on the recipients phone, only on the recipients subscription.

Excuse me, but unless they have radically changed the SIM specification since the last time I looked at it (just minutes), the password goes with the card. That isn't to say it can't be broken into, just that it is on the SIM.

In criminal law, entrapment is conduct by a law enforcement agent inducing (not forcing) a person to commit an offense that the person would otherwise have been unlikely to commit. So maybe not entrapment in this case, as the suspects might have bought the drugs anyway. However, false flag operations clearly fit the description of entrapment.http://chasvoice.blogspot.com/2012/05/fbi-again-foils-their-own-false-flag.htmlhttp://aluminumchristmastree.blogspot.com/2012/04/breaking-news-fbi-false-flag-bombing.ht

20 of the 24 men were convicted of using the internet to solicit a child for sex and some were also convicted of sending harmful material to a child, as some of them emailed pornographic pictures to the decoys. Because these are sex crimes, the 20 convicted men had to register as sex offenders for the rest of their lives. Most of them were also put on sex offender probation.

Petaluma, Ca:

This segment resulted in 26 convictions.

Remember, in To Catch A Predator, the police are not operating the sting. The sting itself is operated by Perverted Justice, who then hand over the evidence to law enforcement. After Chris "why don't you have a seat right over there" Hansen, is done with them.

No, because he's not being induced by them to engage in the activity. They are only brought to the meet because by the time it is set up he has enough evidence to provide a reasonable argument that a crime is about to be committed.

I'm personally waiting for Hansen to get his throat slit wide open right there on camera. Its only a matter of time before he runs into a Gacy or a Bundy that was coming there to pick up his latest trophy and when they see Mr Smartass will be more than happy to spill his guts all over the floor, cops be damned.

It might be, but what's so clear about it? What's the equivalent of a sting operation for terrorism? Well it's to set up a fake terrorist plot and see who signs up. There's never been a requirement that the police prove or even make likely that yes, there would have been a drug dealer or a prostitute there even if the police didn't run a sting. They only need to prove that if that situation occurred, you'd be willing to break the law. So if the plot is fake and there probably wouldn't have been a real one d

If you think Bait Car is illegal you've got a pretty bizarre and incorrect view of our legal system.

Bait Car simply sets up a situation where someone who wants to steal a car can do so with the bonus that they get cameras, remote kill switch et al with that car. Bait Car is pretty cut and dried -- it's not even close to impersonating a drug dealer which might entice someone to buy drugs that maybe wouldn't have otherwise. Law abiding folks will walk by a Bait Car and do nothing to take advantage of it. Those who decide to steal it know they are breaking the law (watch how they glance around furtively and sometimes case the car and surrounding environment before getting in and stealing it if you doubt this).

Suppose Bait Car didn't leave the door unlocked or a nice pair of sunglasses on the center console and someone took a crowbar, smashed the window, hot wired the car, and drove it off. Would you think that would still make the "sting" illegal? Obviously not, but how is this different than what they actually do? Private citizens leave their car doors unlocked all the time and leave things of value in the car all the time and only criminals exploit this. The Bait Cars are not unusual in any way that would particularly entice a criminal to steal them vs. a private citizen's car which had been left unlocked.

I've only watched a few Bait Car episodes and, of course, this is a reality show w/lots of editing.

But, they seem to wait until the thief actually gets in the car and drives it away before springing the trap.

I think, but don't recall for sure, that in one case someone actually walked up to the car, opened the door, and poked around and the police did nothing - later, the car was stolen and they sprung the trap on that crook.

I don't think your turning off the lights would have triggered any action.

That would not be an issue as you are not getting into the vehicle and driving off. All "bait car" arrests are made after the suspect has obviously attempted to steal the vehicle. Opening a door, turning off the lights and closing the door can in no way be construed as theft. Another point is that the cameras are pointed to capture images of someone sitting in the driver's seat. It would probably net capture an image of someone turning lights off.

For it to be entrapment, the police have to initiate the wrongdoing - e.g., if an undercover cop asks you out of the blue if you'd like to buy drugs, that's entrapment. If you call a known drug dealer and tell the guy on the other end (who happens to be a cop) of the phone you want some pot, that's not entrapment.

Using the exact setup from the case in question, if the cops had gone through the seized smartphone's call log and called back phone numbers offering drugs, that'd be on the "entrapment" side of it. I guess.

I suspect you never really know if it's officially entrapment until an judge says it is in the process of throwing out the case.

Pretty much, yeah. Entrapment is a pretty specific thing; if you watch those shows like Cops, they occasionally do drug stings (take down the guy, then use his house). The conversation is very careful -

and then the transaction takes place. The suspect has to be the one who broaches the subject of illegality, the cops can't ask. The idea is they can't entice somebody to commit a crime that otherwise wouldn't have taken place. They can't walk up to a dude and suggest he steal a car, but they can leave a "bait car" unlocked and running. An undercover pretending to be a prostitute can't ask a john if he wants a good time, but she can go along with it when he asks. Basically they can facilitate the situation that would attract somebody already looking to commit a crime, but they can't put the idea into someone's head.

When I was a teenager a guy we all knew turned narc. He called me up and asked if I had any pot. I told him I had a tiny amount left and would smoke with him. He comes to my house and starts begging me to let him take some home. He tells me his stepfather is going to beat him unless he brings some home. After half an hour I get sick of this yoyo bugging me so I give him half a gram just so he'll get out of my house. He didn't even pay for it.

Fast forward a few months and I get pulled over and told I'm being charged with-Possession with intent to distribute narcotics-Sale and delivery of narcotics-Maintaining a vehicle for the purpose of distributing narcotics-Maintaining a dwelling for the purpose of distributing narcotics-Conspiracy to distribute narcotics

On the (bad) advice of my lawyer I plead guilty to 3 out of 5 felonies.

Turns out this was part of our town police's two year long secret undercover investigation. Similar things happened to 8 of my friends, none of whom I would consider "drug dealers." Two years and who knows how much money spent, net result: a bunch of kids who could of had bright futures now with felonies on their records (since you're an adult at 16 in North Carolina).

This is the result of the war on drugs. Police departments need drug busts on a recurring basis to keep getting some of that sweet sweet federal drug enforcement money. What we end up with is a systematic campaign to label casual drug users (usually kids, they don't have the defensive paranoia older users have yet) as dealers and load them up with felonies.

Well, um, I've gone off on a bit of a rant, but the point (I think) was that I was guilty of simple possession, and I was entrapped into distribution that I otherwise was not interested in committing. I guess it's a but blurry considering I was willing to smoke with him... but either way claiming that I was maintaining my house and car for the purpose of conspiring to deal drugs is ludicrous.

TL;DR: A lot of cops suck, the drug war sucks, arresting kids sucks, and entrapment sucks.;-)

Untrue, in Tennessee, my uncle drove by his mother's house to check to see that the property was being taken care of. He stopped at the stop sign as he was supposed to. A woman approached his car and asked him if he was looking for a date. His statement was "Get a real job" and he drove off. A few blocks later, several police vehicles pulled him over. He was arrested and charged with Soliciting Prostitution and his picture was published in the paper. He lost his job with the county and had to fight a 2 year court battle to have the charges dropped due to the Sheriff's department "misplacing" the A/V evidence. The judge dismissed his counter suit for damages.

For it to be entrapment, the police have to initiate the wrongdoing - e.g., if an undercover cop asks you out of the blue if you'd like to buy drugs, that's entrapment.

I think that's close but then there are these types of stings which are (arguably) legal. An undercover cop asks you out of the blue if you want "a good time" or to pay for sex. It's out-of-the-blue because you were just driving by.

For it to be entrapment, the police have to initiate the wrongdoing - e.g., if an undercover cop asks you out of the blue if you'd like to buy drugs, that's entrapment.

I think that's close but then there are these types of stings which are (arguably) legal. An undercover cop asks you out of the blue if you want "a good time" or to pay for sex. It's out-of-the-blue because you were just driving by.

Johns that pick up streetwalkers don't just drive by. They stop and allow the prostitute to approach. The stopping action represents their initiation of the crime.

In criminal law, entrapment is conduct by a law enforcement agent inducing a person to commit an offense that the person would otherwise have been unlikely to commit.[1] In many jurisdictions, entrapment is a possible defense against criminal liability. However, there is no entrapment where a person is ready and willing to break the law and the government agents merely provide what appears to be a favorable opportunity for the person to commit the crime. For example, it is not entrapment for a government agent to pretend to be someone else and to offer, either directly or through an informant or other decoy, to engage in an unlawful transaction with the person (see sting operation). So, a person would not be a victim of entrapment if the person was ready, willing and able to commit the crime charged in the indictment whenever opportunity was afforded, and that government officers or their agents did no more than offer an opportunity.

"Regardless, without deception, the police couldn't do their job very well"

If ever one wonders why people do not trust authority figures like the police, here you are, the quote above. Police will lie and lie and lie to you in order to get the result they want. Do not trust police!! The comic is more hilarious for the fact that none of those "crimes" SHOULD BE CRIMES!! You have prostitution and drug dealing. Solve them by legalizing drugs, legalizing prostitution. Two of the most common scenarios where you

Right - if they persuade someone to commit a crime that they otherwise would not it's entrapment. This happened to a friend at Burning Man a few years ago: A new guy was hanging around the friend's camp all day, drinking, smoking weed, just getting to know everyone. After several hours he says "hey, I've got some extra weed, could any of you help me turn it into mushrooms?" My friend, thinking he was doing the new guy a favor agreed. Turns out the "new guy" was an undercover cop and busted my friend for dis

Yes, but with a wiretap the undercover part wouldn't be needed in the first place. Also, in a state with an "objective" entrapment test (in this case "would a normal law abiding person have sold the drugs when begged") this would be a difficult defense. But in states with a "subjective" entrapment test ("would the defendant himself have done the crime if simply asked rather than begged") it would seem like a pretty tight defense. According to Wikipedia, 37 states use the more stringent subjective test.

Please look it up before leaving a stupid comment. Entrapment is when they force you to do it. Gathering information is not forcing anybody to do anything. I'm about as anti-cop as they come (I smile when I read a cop is killed), but.... Your comment was weaksauce.

Entrapment is offering to sell drugs and then arresting people who buy them. That is different than waiting for a request to buy drugs and arresting people when the transaction completes.Here are two examples;

Undercover officer; Want to buy (insert illegal drug here)?Person; SurePerson and officer exchange "drugs" for money.Officer arrests person. That is entrapment as the officer made the first offer of an illegal action.

Aren't they also asking you to surrender your password and access codes for phones, laptops, etc., whenever you board a plane, and have now extended that to searches of a vehicle, and in fact, they can now force you to reveal your password without charging you with any crime. So then they compel you to surrender your identity and equipment... and then use your identity and equipment to pretend to be you, in order to do the same to others.

Aren't they also asking you to surrender your password and access codes for phones, laptops, etc., whenever you board a plane, and have now extended that to searches of a vehicle, and in fact, they can now force you to reveal your password without charging you with any crime. So then they compel you to surrender your identity and equipment... and then use your identity and equipment to pretend to be you, in order to do the same to others.

Agent Smith, you have competition.

ProTip: Police forces can only do what the citizenry allows them to do.

Of course, to change that trend would require a complete reversal of the status quo mentality of only being willing to defend the rights of those one agrees with.

Actually, what we need are police who are accountable before the law. Not police who know they can illegally detain, search and shoot people with utter impunity because none of their buddies will arrest them and the prosecutor will not prosecute them.

Couldn't the same also be said about snail mail - that you have no reasonable expectation that the envelope will be opened by the recipient?

I must say, I find it slightly disturbing that there is no reasonable expectation that the owner of the phone is the one who will be reading my correspondence. What reasonable person does *not* expect someone to be in position of their own property? If it was not reasonable to believe the owner of a phone is the one holding it, why would we use such phones for communication?

Couldn't the same also be said about snail mail - that you have no reasonable expectation that the envelope will be opened by the recipient?

I must say, I find it slightly disturbing that there is no reasonable expectation that the owner of the phone is the one who will be reading my correspondence. What reasonable person does *not* expect someone to be in position of their own property? If it was not reasonable to believe the owner of a phone is the one holding it, why would we use such phones for communication?

It's not so much the expectation that the intended person is the recipient, but rather that the intended person is the exclusive recipient of your communication.

After all, I reasonably expect people to be in possession of their own property, for instance their car. So if I see my wife's car in a parking lot, I would reasonably expect my wife to be somewhere nearby. However, I wouldn't find it unreasonable if instead I found, say, my mother-in-law nearby, because it's reasonable for her to let her mother drive her car.

Still, it feels almost like splitting hairs. After all, I would not reasonably expect a stranger to be driving her car; the only reason my mother-in-law wouldn't be unreasonable is because she's immediate family.

In that sense, I might not expect the intended person to be the exclusive recipient, but I would expect to know all potential recipients (e.g. if I send a message to my buddy, I could reasonably expect his wife to read the message, but I wouldn't reasonably expect his neighbor to be reading it).

"Couldn't the same also be said about snail mail - that you have no reasonable expectation that the envelope will be opened by the recipient?"

Actually it's a federal crime to read someone elses mail. That's the example that should have been used as mail, pagers, phones, internet, actually are just communications channels protected under the 4th amendment privacy references and later court decisions. In deference to recent court decisions, the general public has every right to expect that priv

It's always been the case that someone could have lost their phone/pager, or had it stolen. Sure, in most cases the phone will be in the hands of the owner, but it's certainly not guaranteed.

With a pager it's pretty obvious, there is no security, your phone number just displays on the screen. So I think they're correct there. Similarly, with many dump phones an incoming text message just pops up on the screen.

Now in the case of a smartphone with a password then in my opinion you could reasonably argue th

Yes, it could have been stolen. However, to say that something is not impossible is not to say that something is reasonable. The crux of the matter is that I have a reasonable expectation that a phone will not be stolen when I send a communication to it. After all, if the phone was stolen, a reasonable person would report it stolen promptly, and the service would be shut off, thereby removing the ability of the thief to read the contents of any message I send to the phone. With the advent of remote wipe abilities, you could also try to make the argument that a reasonable person would have all the info from a stolen phone remotely wiped, therefore denying access to even previously successful communications with the intended recipient.

However, I am drawn back to the snail mail analogy again. It's always been the case that someone could take the mail directly from your mailbox. However, this expectation is unreasonable because taking someone else's mail is illegal. In the same token, stealing someone's personal property is also illegal.

So, again, if you don't have a reasonable expectation of privacy because the recipient's phone could be stolen, why would you have a reasonable expectation of privacy when sending snail mail?

As a sender of a message I regard the message to be in transition until it reaches the recipient *I* intended.
Therefore it should be treated as the interception of a message in transit when the wrong person reads of an end device which is not hers.

In my college days (read: drug experimentation days), we were at my friend's apartment waiting for two more friends to arrive for our "after hours" party (2:01 am, after the bars close). While packing a bowl, we had our back to the door and there was a knock. We knew our friends were coming and we assumed it was them. "COME ON IN" we said. In walked two police officers (called to our location for a noise complaint). They confiscated our drugs/paraphernalia and cited us for something (I forget the detai

They didn't forget to take the drugs/pipes. They correctly recognized that if they took the drugs they had to charge someone with possessing them, if they charged someone with posessing them that person would be banned from getting financial aid for school. The cops made the choice to be decent about it and handle the noise complaint without ruining anyone's life. Kudos to those officers.

Oh no, we were cited. We had a court appearance for some type of minor paraphernalia possession which is on my record to this day. I don't remember if I had to pay a fine or do community service (maybe both).

I can see that once the police had the phone, that looking at the address book is equivalent to looking at an old style rolodex. Looking at received texts is like the precedent cited of looking at received messages on an old style pager. But *sending* texts seems like something new. Are there precedents where a police officer who is a skilled voice mimic answers a seized phone, or starts making calls from a seized phone and impersonates the true owner of the phone?

To the fourth amendment - secure in your person, papers and things. A cell phone is definitely a thing. And without warrant and probable cause the police shouldn't be touching the phone. Use a secure lock code on your smartphone! You don't have to disclose it.

This is news? Why would anyone expect our so-called "law enforcement" officers to be held to any standard of honesty or integrity nowadays?

Yeah, this is the completely expected outcome. Police can lie to you. That's part of their job. At no point should you believe that a cop is telling you the truth. Their job is to get information out of you, any way possible.

Now, if you do the same thing you're guilty of a crime (it's highly assymetrical).

the pager is 'nothing more than a contemporary receptacle for telephone numbers,' akin to an address book.

If a phone is like a pager, then by this reasoning, opening your snail mail is fine, because an envelope is 'nothing more than a contemporary receptacle for street addresses, akin to an address book.' Note that the envelope contains the communication itself, which is protected. That in itself should preclude responding to the letter by a police impostor. The cell phone also contains protected communic

I suspect passwords are important for another reason.Previous caselaw, as I understand it has established that there may not be a reasonable expectation of privacy for texts.

If you know that a user of a phone has their phone secured, so that only the user can easily access it - this may be sufficiently different so as to make this earlier caselaw not apply.Then there may be a 'reasonable expectation of privacy', that users do not know the phone they are sending to is locked may not have.

Usually in these cases it's some scumbag trying to get away with shit and the court will go hunting for a rationale by which the evidence is admissible. In order to actually get an outcome which respects privacy, you would have to set it up such that it is a law abiding citizen getting his rights violated, like Heller v DC if you want a favorable ruling.

I believe that depends on what state you live in. I know for a fact that it is illegal to lie to police in the state of California. Especially if it hampers an investigation. That's why they tell you not to speak without a lawyer.